The Royal Proclamation and Treaty of Niagara as an Indigenous Magna Carta

Since arriving on these shores centuries ago, the Canadian Crown – born out of the French and British monarchies – has grown and evolved and embraces the unique histories and relationships found in North America. Some of the most exceptional aspects of our constitutional monarchy are the Treaty relationships fostered between the monarch and Indigenous Nations of Turtle Island.

Eager to learn more about these relationships I attended the 2013 AGM of the Indigenous Bar Association, held at Rama First Nation. The theme of the gathering was “Peace, Friendship and Respect: A Critical Examination of the Honour of the Crown on the 250th Anniversary of the Royal Proclamation and the Treaty of Niagara” and was attended by such distinguished individuals as Justice Murray Sinclair (Chair of the Truth and Reconciliation Commission), Alan Corbiere (Anishinaabe Cultural Historian) and Dr. John Borrows (Canada Chair of Indigenous Laws).

I remember being taught in school that the Royal Proclamation – the document issued in the name of King George III that concluded the Seven Years’ War in this hemisphere – was the “Indian Magna Carta.” Of course, such a definition is one-way, implying that the rights enshrined in the Great Charter did not exist in North America prior to colonization.

So what was the Royal Proclamation?

In its landmark decision dismissing terra nullius (the idea that Europeans arrived in North America to a land that was not owned by anyone else, and therefore was ripe for the taking) the Supreme Court of Canada in Calder vs. The Supreme Court of BC, 1973 declared that the Royal Proclamation “. . . as a statute is analogous to the status of Magna Carta . . .”

The majority of the Proclamation dealt with the management of newly acquired French territories and the distribution of land for officers and soldiers who fought for the British Crown. It is in the final third of the document that “Indians” are addressed:

And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.

That the King refers to Indigenous People as comprising “Nations” is significant, as well as the affirmation of his connection to them. It is for these reasons that the Royal Proclamation is often held up as legitimizing Indigenous ownership of the land. Of course, this assertion requires us to believe that Indigenous Peoples needed the monarch of a far-off land to tell them that they owned the land they had inhabited for millennia. Also, the criteria used to place First Nations under the King’s protection established a formula through which they could be divested of their territories (by ceding or selling them to the Crown). While sovereignty was implicitly applied to the Indigenous Nations of British North America, it fell within the parameters of a definition which required European acknowledgement to exist.

“I love the Royal Proclamation,” Justice Murray Sinclair confessed at Rama First Nation, “and hate it at the same time.”

Sinclair explained that, at best, King George’s Proclamation was an imposed relationship by a far-away and aloof government focused on protecting its trading relationships. At worst, the document created the framework that allowed Aboriginal title to be extinguished and Aboriginal lands to be transferred to the settler population.

Magna Carta is a statement of principles that began to articulate Western views concerning human rights and the importance of law. Such values are human values, and so find expression in many different cultures across the planet. While Magna Carta followed the English and British flags across the globe, the lands it encountered were not Libertas Nullius. It is true that there were no “Great Charters” (meaning physical documents with text), however there was wampum (mnemonic devices made of quahog beads woven with sinew and imbued with the words of treaty) and other vehicles that communicated similar ideas of equality and sharing of the land.

This is why, as a stand-alone document, the Royal Proclamation of 1763 cannot be the “Indian Magna Carta.” Rather, it is only when the Treaty of Niagara is added to the King’s Proclamation that it becomes significant to both societies.

Gathering 24 Indigenous Nations on the shores of the Niagara River one year after the Proclamation, the Council of Niagara was called by the Crown, and employed Indigenous diplomacy, as explained by Dr. John Borrows, to reveal what was “hidden in the Royal Proclamation’s words.”

Sir William Johnson, Superintendent of Indian Affairs for the Northern Colonies and representative of the King, respected that Indigenous diplomacy included the exchange of gifts and wampum, as well as verbal explanations that gave King George’s Proclamation clarity and depth. Assurances of equality were very important as none of the Nations gathered at Niagara saw themselves as subjects of George III. Rather they were now family, bound together in a great Silver Covenant Chain of Friendship.

The use of silver as a metaphor is key – silver must be polished regularly in order to stay bright, just as frequent meetings and constant communication are needed to keep a relationship healthy and strong. This is why, at the very heart of the Royal Proclamation and Treaty of Niagara is a familial relationship with the Sovereign.

What the Treaty of Niagara did was to allow the 24 Indigenous Nations to express their concepts of equality and freedom using such diplomatic mediums as wampum while the Crown had to do the same with the Proclamation. When the council was concluded with the Treaty of Niagara, a living relationship was born (for Indigenous Peoples the word “Treaty” is a verb, not a noun).

When looked at holistically, both the Royal Proclamation and the Treaty of Niagara can properly be seen as an Indigenous Magna Carta that continues to live and grow in these lands. Of course, this means that all Treaties are Magna Cartas in their own rights.

When the Canadian Charter of Rights and Freedoms was added into the written constitution of Canada in 1982, the Royal Proclamation was restored to its rightful place in our democracy. Thanks to Section 35 of the Charter, the fulfillment of the obligations detailed in the Royal Proclamation were not just morally and ethically necessary, they were now a constitutional directive. However, the King’s Proclamation must be seen alongside the Treaty of Niagara in order for it to become authentic.

Without including what was sealed by wampum in 1764, an incomplete picture of the relationship – of an Indigenous Magna Carta – will persist in this country. We only have to look around, or flip through our history books, to find the consequences of perpetuating a faulty definition.

Nathan Tidridge is the author of The Queen at the Council Fire: The Treaty of Niagara, Reconciliation and the Dignified Crown in Canada (Dundurn Press, 2015). He teaches Canadian history and government at Waterdown District High School, and was one of six Ontarians presented with a Diamond Jubilee Medal by His Royal Highness the Prince of Wales. Nathan maintains a website dedicated to teaching Canadians about their constitutional monarchy at http://www.canadiancrown.com.